Court of Appeal – Re W. Some reflections.

Family Solicitor Chris Longbottom was asked to offer his thoughts on the recent case of Re W. Like Chris, OnlyDads believes this case offers genuine hope for a brighter future for many children who lose contact with their dads post separation and divorce.

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On 13 June I assisted OnlyDads in preparing an article responding to Government proposals to “strengthen” children’s rights to maintain contact with both parents following separation or divorce. You can see the article here

The plans looked to establish a presumption of shared parenting and a legal right for both parents to have a meaningful relationship with both parents. OnlyDads and I were sceptical. We both felt that there was little wrong with the current legislation, The 1989 Children Act, but the issue lied with the application of the current law and the social perception of a father’s role in his child’s life.

I concluded the article by stating “I am sceptical to what “changes” will actually be made…but more so as to what impact they will have in our social approach to shared parenting. Although I cannot argue that it is a positive step in the right direction; I feel that more needs to be done to educate and develop the views and application of the current legislation rather than trying to re-invent an already shaped (albeit bumpy) wheel.”

Last week, in the decision of the Court of Appeal in the case of Re W, I feel that we hopefully saw the first step of that idealism of shared parenting and a shift in the social perception of the involvement of both parents in a child’s life.

Re W involved a case where a mother, after a six-year relationship, separated from the father in 2008 taking the children with her without warning. The children were aged 1 and 4 years. The mother refused contact between the father and the children, and raised numerous serious allegations against dad. Only one allegation was upheld – that he had spat at her. The father applied for a Contact Order. At a hearing in 2009, the Judge stated that the mother would be “unable to cope” with contact taking place, stating that direct contact would be too distressing for the mother. The father was banned from direct contact and was only allowed to send letters, gifts and cards to his children one a month.

Lord Justice McFarlane, Lord Justice Rix and Lord Justice Tomlinson unanimously overturned that judgement stating, “all are agreed, as in the present case, that it is in the best interests of a child to have a meaningful relationship with both parents, the courts are entitled to look to each parent to use their best endeavours to deliver what their child needs, hard or burdensome or downright tough as that may be.”

The senior Judges urged the parents to look at the “bigger picture” and to consider the harm to the children caused by on-going proceedings. Lord Justice McFarlane added that parents shared a “responsibility and a duty” to ensure that children “can benefit from being in a full relationship with each parent”, working together to addressing any issues that arise following separation and establishing “safe and beneficial” contact. It seems the Judiciary has listened to the Government which used the same words in describing the proposed changes to the legislation.

The Government’s proposed changes also seek to address compliance issues. In my last article I argued that the current legislation provided for the enforcement of Orders and penalties for those who deny contact. It seems that the senior Judges in Re W also had this in mind when delivering their judgement stating that they understood that it was a “very big ask” for the mother to accept that it was in the best interests of the children to have two parents and not one, but that where “it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be”. The Court therefore ordered that the mother will facilitate contact under the supervision of a court-appointed children guardian stating that it was not acceptable to “shirk” their responsibilities to facilitate contact and could not just refuse “reasonable strategies” to assist. The Court stated that the legislation focuses on the best outcome for the children, not the parents or anyone else.

I hope that this case heralds a shift in the social and legal perception towards shared parenting. I also feel that this demonstrates that a change in legislation is not required, the ideals and mechanics of shared parenting and ensuring children have a meaningful relationship with both parents are present in the 1989 Children Act. In Re W the Court applied the legislation in the correct way and still considered the welfare of the children as being the main consideration for the parties and the Court. My last article stated that it couldn’t be argued that the Government’s proposals were a positive step, however if the Judges in Re W did have those plans in mind when considering their judgement then it may well act as a “push” rather than a step in the right direction.

Please do let us have your comments – just another “case” or does Re W represent something far more fundamental?

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About onlydads

Single Dad living near Totnes in Devon. I founded www.onlydads.org in 2007 and live with my daughters Priya, 14 and Anya 11. I write about single parenting, work, overcoming trials and tribulations and sometimes not overcoming trials and tribulations.
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